Andhra HC (Pre-Telangana)
M. Shyam Sunder And Ors. vs Government Of A.P. And Ors. on 24 August, 2001
Equivalent citations: 2001(6)ALD87, 2002(5)ALT454, 93(2001)DLT74
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT V.V.S. Rao, J.
1. The proliferation of seniority disputes in service law is characterised with perpetuation. As observed by the Supreme Court in Dr, C. Manila Siddaiah v. T.G. Siddapparadlya, , the canker of litigiousness has spread even to a sphere of life where discipline should check ambition concerning personal preferment despite the exception that a Government servant is expected to bear with fortitude and reconcile himself to his lot suppressing disappointment when he finds a co-workers raised to a position which he himself aspired after. (See also D. Hatmianth Rao, v. State of A. P., 1991 (3) SLR 3 (SC).
2. This preface to this judgment is, however, not to subject the lis to microscopic judicial scrutiny nor to turn away the petitioners at the threshold. In these petitions under Article 226 of the Constitution of India the question relates to correctness of a Government Order purporting to revise the dates of regularisation of the petitioners and consequent downward review of their positions in the seniority lists of Deputy Executive Engineers (DEEs). We are concerned with only with such seniority lists relating to Zones V, VI and VII. The questions raised are common in all the writ petitions and therefore one common judgment is appropriate.
Facts of the Case :
3. All these applications seek judicial review of the judgment passed by the learned single Judicial Member of Andhra Pradesh Administrative Tribunal (hereinafter called 'the Tribunal') dated 19-4-2000 (hereinafter called 'the impugned judgment') in OA No.1357 of 2000 and Batch consisting in all ten cases. While noticing the facts, we have not only relied on the pleadings before the Tribunal and before this Court, but also relied on voluminous documents placed on record to trace the history of litigation which ultimately culminated in the insurance of G.O. Ms. No.72, Transport, Roads and Buildings (Ser-II) Department dated 6-5-2000 (hereinafter called 'the impugned order').
4. The A.P. Roads and Buildings Engineering Service is governed by Special Rules known as A.P. Roads and Buildings Engineering Service Rules (hereinafter called 'the Special Rules') issued in G.O. Ms. No. 1023 PWD, dated 27-6-1967. These rules were repealed by new set of rules issued in G.O. Ms. No.103 dated 17-8-1996. But, reference is made only to the rules issued in 1967. According to these rules the post of DEE is to be filled by direct recruitment as well as by recruitment by promotion/transfer of Assistant Executive Engineers (AEEs) and Supervisors [now designated as Assistant Engineers (AEs.)] or Draftsmen (Special Grade) or Draftsmen (Grade-1) in the ratio of 371/2% for direct recruitment and 621/2% for other method. Till 1975 there used to be a combined seniority list for the entire State and the same followed while considering promotion to the post of Executive Engineer (EE). Since 1972, however, the subject of inter se seniority among direct recruits and promotees has been constantly and continuously is being litigated in this Court, in the Supreme Court as well as the Tribunal (after it was constituted in 1975 in accordance with Article 371-D of the Constitution of India). Finally in a series of cases involving question of inter se seniority disputes between direct recruits and promotees, to which a reference is made infra the Supreme Court directed not to disturb the dates of regularisation or the seniority of promotee Engineers upto 31-12-1982 and take necessary steps for filing up the direct recruitment quota with reference to the vacancies which existed as on 31-12-1982 and thereafter. A contempt case was filed before the Supreme Court alleging gross violation of the order passed by the Supreme Court in WP No. 17165 of 1984 in K. Siva Reddy v. State of A. P., . The Supreme Court while dismissing the contempt cases by order dated 7-10-1993 laid down certain principles inter alia directing that the direct recruits and promotees, who were appointed in the vacancies upto 31-12-1982 shall be placed above others. In the meanwhile, a batch of original applications (OAs) under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter called 'the Tribunals Act') were filed when the Government sought to prepare a seniority list in accordance with the judgments of the Supreme Court dealing with the dispute regarding inter se seniority among direct recruits and promotee engineers. In all those OAs a direction was sought to the Government to implement their guidelines issued in a Memo dated 11-8-1992 and consider the names of the respective applicants for promotion to the post of Executive Engineer.
5. A Full Bench of the Tribunal heard a batch of OAs, OA Nos.41796 of 1991 and batch and disposed of by common order dated 29-10-1997 with the following directions.
(i) The position of appointments and consequent inter se seniority before 31-12-1982 should not be disturbed at any costs.
(ii) While implementing the quota rule, for purposes of filling up the shortfall vacancies, vacancies meant for direct recruits should be calculated from 1-4-1965 and not 31-12-1982, till 31-12-1987.
(iii) Government have the power to make retrospective regularisation as per Rule 23 of the General Rules. Notional dates of promotion can be assigned to promotees before 31-12-1982 as per law, but subject to the condition that inter se seniority between promotees and direct recruits is not altered.
(iv) Direct recruitment in our State is governed by Article 371-D(2) as decided by the Supreme Court in Suryanarayana Rao's case vide .
(v) As a corollary, no promotee who is occupying direct recruits vacancy can get the benefit of such service for seniority and consequently for promotion. Because of the specific direction, promotees even occupying wrongly the vacancies meant for direct recruits before 31-12-1982 cannot be reverted, but such service till they are regularised in a vacancy meant for their stream will be purely temporary.
(vi) The promotees occupying the slots meant for direct recruits after 31-12-1982 can be reverted for want of vacancies meant for their stream. The 1986 direct recruits will be positioned in the seniority list as per their dates of appointment, being recruited against substantive vacancies meant for their stream.
6. When the OA Nos.41796 of 1991 and batch were pending before the Tribunal, the Government issued G.O. Ms. No.314 Transport, Roads and Buildings (Services-II) Department dated 29-11-1994 approving the final zone-wise seniority list of DEEs in the Department who were appointed after 1-4-1965 subject to the out come of the cases pending before the Supreme Court in CA Nos.7592 and 7593 of 1993. Therefore, the Tribunal also issued another direction as follows :
Government should verify whether correct dates of regularisation have been assigned in G.O.Ms.No.314 and G.O. Ms. Nos.38 and 147 as per the principles laid down in this judgment - particularly in Part-Ill Point 3(A)(d) and (e) - and wherever necessary amendments to G.O. Ms. No.314 should be issued indicating the correct position, in seniority list, as per law, of both direct recruits and promotees strictly as per principles laid down herein.
7. It is to be noticed that when the Government started exercise of preparation of seniority list of DEEs they received 152 objection petitions at the stage of provisional zonal seniority list and all the objections were rejected. In none of the objections, there was a demur regarding retrospective dates of regularisation given to the petitioners or similarly situated persons.
8. Yet another dimension of the case is the issuance of two Government Orders which were issued while OA Nos.41796 of 1991 and batch were pending before the Tribunal. The two Government Orders being G.O. Ms. No.259 dated 22-12-1993 and G.O. Ms. No.260 dated 22-12-1993 issued by the Government, revised various orders in relation to the preparation of panels of AEEs etc., for appointment as DEEs for the years 1975-76 to 1988-89 in zones V and VI (in zone V it is only upto 1982-83). By virtue of these G.Os some AEEs shown in panel years prior to actual year of promotion. The two Orders show that before issuing these orders A.P. Public Service Commission was consulted in the matter and the Commission agreed for inclusion of 17 AEEs in the panel year 1975-76 in regard to zone V and for inclusion of 4 AEEs in the panel year 1975-76 and for revision of the panels for the post of DEEs from 1975-76 to 1988-89. There two Government Orders were challenged before the Tribunal in OA Nos.7228 of 1993 and batch of original applications. The Government justified these two Government Orders giving retrospective dates of regularisation to the petitioners on the touchstone of paragraph 13 of A.P. Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (hereinafter called 'the Presidential Order). The Tribunal upheld the two Government Orders. The judgments of the Tribunal in those O.As was delivered on 23-11-1994 and the final seniority list in G.O. Ms. No.314 was issued on 29-11-1994 i.e., only after the Tribunal upheld G.O. Ms. Nos.259 and 260. The judgment of the Tribunal in OA No.2355 of 1994 dated 23-11-1994 upholding the validity of G.O. Ms. No.259 and 260 was carried to Supreme Court by way of Special Leave petition. By order dated 17-12-1995 SLP was dismissed.
9. The judgment of the Full Bench of the Tribunal in OA No.41796 and 41797 of 1991 dated 29-10-1997 was challenged before this Court in WP No.5834 of 1998 and batch by the Government as well as other aggrieved parties. A Division Bench of this Court by order dated 23-7-1999 while disposing of the writ petitions upheld the validity of the final seniority list issued in G.O. Ms. No. 314, G.O. Ms. No.38 and G.O. Ms. No.147 giving liberty to the Government to scrutinize the same again if the said Government Order is not in consonance with the directions issued by the Division Bench in paragraph 18 it is apposite to excerpt these directions.
(18). 1 That the promotions of the personnel borne on Andhra Pradesh Roads and Buildings Engineering Service to the posts of Deputy Executive Engineers even in excess of the quota of 621/2% for the period from 1-4-1965 to 31-12-1982 cannot be disturbed and the direct recruits appointed during the said period i.e., 1-4-1965 to 31-12-1982 will get seniority only from the respective dates of their appointments and the said issue of seniority for the above period inter se direct recruits and promotees shall not be reopened.
2. The finding of the Tribunal that the deficiency in direct recruitment conforming to 371/2% in A.P. R&B Engineering Service is liable to be reopened for the period from 1-4-1965 to 31-12-1982 is set aside.
3. The finding of the Tribunal that the personnel promoted to the posts of Deputy Executive Engineers of A.P. R&B Engineering Service are not entitled to count their seniority from their first entry into service in the cadre, but have to wait for their turn in the vacancies meant for their quota of 621/2% right from 1-4-1965 to 31-12-1987, is set aside.
4. That the Deputy Executive Engineers in R&B Department of State of Andhra Pradesh regardless of their source of recruitment, be it direct or promotion/ transfer and regardless of their quota, are entitled to retain promotions effected and their relevant inter se seniority basing on their first entry in to service for the period from 1-4-1965 to 31-12-1982.
5. The Engineer-in-Chief of the Roads and Buildings Department and the Government shall identify the unfilled vacancies as on 31-12-1982 in the category of Deputy Executive Engineers of A.P. Roads and Buildings Engineering Service.
6. Such unfilled vacancies mentioned in paragraph 18 (5) supra shall be added to the vacancies which arose upto the period 31-12-1987 and the deficiency in the direct recruitment can be made up only out of such vacancies as mentioned in paragraph 18 (5) and (6).
7. The Governmental orders issued in G.O. Ms. Nos.314, 38 and 147 shall be scrutinised again and if they are found to be in consonance with our directives above, they shall be treated as final, or else, necessary modifications be made to be in tune with the above directives. This exercise shall be made within a period of three months from the date of receipt of a copy of this order.
8. All other directives issued by the Tribunal which run contra to the directives issued by this Court mentioned above from 18 (1) to (6) stand set aside.
10. Against the judgment of the Division Bench in WP Nos.5834 of 1998 and batch dated 23-7-1999, one Mr. Ravinder Rao, who was 7th respondent in WP No.23020 of 1998 (one of the batch cases) preferred a Special Leave Petition being SLP (Civil) No.6980 and 6981 of 1999. The Supreme Court dismissed the SLP holding that "the judgment of the High Court is in conformity with the decisions of the Supreme Court and no interference is called for."
11. The Government which issued G.O. Ms. No.3I4 (final seniority list) and which defended its action by filing writ petitions before this Court being WP No.5834 of 1998 instead of limiting the exercise for reviewing the seniority list only with regard to DEEs, whose placement was not in conformity with directions of this Court again restarted the whole exercise. In furtherance thereof, the Government issued a Memo No.1827/Ser.11 1/93-39 dated 6-3-2000 proposing to fix inter se seniority between the direct recruit engineers and promotee engineers for the period from 1-4-1965 to 31-12-1982 and from 1-1-1983 to 31-12-1987. By the said Memo objections/suggestions were called for from all the DEEs to the proposed seniority list. No notice, however, was issued either proposing to nullify Government Orders in G.O. Ms. No.259 and 260 dated 22-12-1993 or to set aside the final seniority list issued list issued in G.O. Ms. No.314 dated 29-11-1994 and other such Government Orders. There was no indication in the show-cause notice i.e., Memo dated 6-3-2000 that petitioners date of regularisation will be changed.
12. The petitioners herein and others filed OA No.1357 of 2000 and batch challenging the Government Memo dated 6-3-2000 calling upon the DEEs to file objections for the proposed inter se seniority list. When the matters were pending, the Government having rejected some objections from a few DEEs, by G.O. Ms. No.72 Transport, Roads and Buildings (Services-II) Department dated 6-5-2000, revised/ modified the dates of first entry into service and/or regularisation of the petitioners. The Government further purporting to exercise their powers under Rule 23 (a) read with Rule 33 of A.P. State and Subordinate Service Rules, 1962 (hereinafter called 'the General Rules') in supersession of the orders issued in G.O. Ms. No.314 dated 29-11-1994, regularised the services of certain DEEs including the petitioners changing their dates of regularisation. In paragraph 16 of the G.O. the Government made it clear that the integrated seniority list from 18-10-1975 to 31-12-1982 and from 1-1-1983 to 31-12-1987 will be issued separately. Be that as it may, the petitioners filed necessary applications for amending the prayer in the O.As to challenge G.O. Ms. No.72 and they were allowed. The Tribunal by the impugned judgment dismissed the O.As challenging G.O. Ms. No.72 and also directed the Government and Engineer-in-Chief to review the promotions given earlier contrary to the seniority fixed in the impugned order.
13. At this stage, we may also notice the findings and observations made by the Tribunal in the impugned judgment. After referring to the genesis of the dispute in brief starting from the issuance of G.O. Ms. Nos.259 and 260 giving retrospective effect to the regularisation of the petitioners, the Tribunal records a finding that the entire seniority dispute between the direct recruits and promotees was settled by the judgment of the Division Bench of the High Court in WP No.5834 of 1998 and that impugned Government Order was issued in pursuance of certain directions issued in the above judgment of the High Court. A finding is also recorded that those two Government Orders being G.O. Ms. Nos.259 and 260 were issued under wrong notion that the cadre strength of Engineers in Zones, V, VI and VII prior to Presidential Order have not been property filled up and the petitioners, are entitled for those vacancies by way of notional promotions. Then, it was observed that as per the vacancy position given in the impugned Government Order there were in fact no vacancies during respective panel years in which the petitioners were accommodated. For this reason, and especially relying on direction 18(4) issued by the Division Bench of this Court, the Tribunal arrived at a finding that denying the benefit of regularisation to the petitioners on the ground that the promotions were in excess of the quota for the period from 1-4-1965 to 31-12-1982 is justified. The Tribunal also did not find fault with the impugned Government Order on yet another ground that the Tribunal while sustaining the validity of G.O. Ms. Nos.259 and 260 had observed that inclusion of the petitioners in the panels is liable to be reviewed in the light of seniority list to be prepared. Further, when the notional promotions were given beyond the date of their appointment, a mistake had crept in which required rectification and therefore the impugned order is valid. The judgment of the Tribunal in OA No.1357 of 2000 is challenged as vitiated by error apparent on the face of the record.
Rival Submissions:
14. Sri P. Balakrishna Murthy, the learned Counsel for the petitioners made submissions to the following effect. The Government purportedly placed reliance upon various judgments of the Supreme Court, which are primarily concerned with inter se seniority of direct recruits and promotees in the category of Executive Engineers, and which in fact, laid down the principle to the effect that all things done prior to 31-12-1982 should not be disturbed. The Division Bench of this Court in WP No.5834 of 1998 dated 23-7-1999 never intended to deprive the petitioners of their dates of regularisation, which has become final by virtue of the orders of the Government in G.O. Ms. Nos.259 and 260, dated 22-12-1993, which were affirmed by the Tribunal in OA No.2355 of 1994, dated 23-11-1994. When the orders in G.O. Ms. No.259, dated 22-12-1993 were impeached before the Tribunal, the Government stoutly defended the same placing reliance on the Presidential Order. The judgment of the Tribunal uphold the two G.Os having become final by virtue of the orders of the Supreme Court in SLP No.3167 of 1995, dated 17-2-1995, it is not open to the Government to come forward and say that the vacancies in which the petitioners were adjusted while regularisation was done were 'none-existent vacancies'. Even in the show-cause notice, which proceeded the impugned GO, the same is conspicuous by its absence. Therefore, the impugned GO must be held to be void as being without adequate opportunity having regard to the principles of law laid down by the Supreme Court in I Union of India v. P.K. Roy, . The Government all along, as in the earlier proceedings contended that the petitioners were regularised retrospectively in accordance with the Presidential Order having regard to the substantive vacancies in the cadre/posts, and therefore, the Government cannot be allowed to turnaround and defeat the claims of the petitioners by misinterpreting the directions issued in WP No.5834 of 1994, dated 23-7-1999. The Government has no power to review the orders of regularisation and /or seniority. The power to review under para 13 of the Presidential Orders is available only once. Reliance was placed on the judgments of the Apex Court in P.N. Thakershi v. Pradyumna Singhji, , M.R. Sarma v. State of A.P., 1974 (1) SLR 882, and judgment of the learned Judge of this Court in P. Prakash Archibald v. Government of A.P., 2000 (2) ALD 45. The orders issued in G.O. Ms. Nos.259 and 260 and G.O. Ms. No.313 have become final, and after long lapse of time, the seniority cannot be disturbed having regard to the principles laid down in Rabindranath v. Union of India, , and Division Bench judgment of this Court in N. Kotam Raju v. Regional Deputy Director of Fisheries, Kakinda, .
15. In regard to second review under para 13 of the Presidential Order, it is alternately urged that even if orders passed in G.O. Ms. Nos.259 and 260 are not under para 13 of the Presidential Order, the contention of the Government that there were no vacancies available which were filled up by the petitioners is misplaced. Before the Tribunal, when the two GOs were challenged in OA Nos.362 and 2355 of 1994 etc., the Government contended that the shortfall in the local cadre was reviewed and the vacancies were filled up by adjusting the candidates belonging to feeder categories in various zones as per para 13 of the Presidential Order because the temporary and permanent posts occupied by DEEs belonging to other zones were treated as substantive vacancies. The principle of regularisation under Rule 23 anterior to the date of appointment/ commencement of service was explained by the Government in G.O. Ms. No.354, dated 11-5-1990 stating that the notional date of promotion can be taken into consideration for computing the qualifying length of service in the feeder category for promotion to the next higher category of notional service may be computed for the purpose of declaration of probation also in the feeder category. The Supreme Court in Siva Reddy's case (supra). Hanmanth Rao's case (supra) etc., held that regularisation made and seniority prior to 31-12-1982 cannot be disturbed at all. In respect of the Engineers in zone VII, the Government themselves exercised their powers under Rule 47 of the General Rules relaxing Rule 33(c) enabling the authorities to regularise the services of DEEs anterior to the date of the first appointment. All these principles were kept in view and G.O. Ms. No.314, dated 24-11-1994 was issued finalising the seniority list keeping in view the various principles laid down in the judgment of the Tribunal as well as the Supreme Court. Therefore the Government cannot derive any strength from the observations made by the Tribunal in OA Nos.362 and 2355 of 1994 or direction 18(4) of the Division Bench judgment, especially when the petitioners are very much qualified and eligible for being promoted in the resultant vacancies vacated by other zone officers as on 18-10-1975 and thereafter.
16. It is further submitted that final seniority list in G.O. Ms. No.314, dated 29-11-1994 was issued and finalised pursuant to the directions issued by the Tribunal and the Supreme Court, and therefore, any ground projected by the Government either with regard to maintenance of ratio between Assistant Executive Engineers and Assistant Engineers, and in regard to preference to post-graduates, cannot be upheld having regard to the principles of law laid down by the Supreme Court in the above mentioned cases. In any event, the learned Counsel submits that when once the date of regularisation is fixed by the competent authority in accordance with Rule 23(a), it is not open to the Government to change the date of regularisation to the disadvantage of the employees. He placed reliance on the judgment of the Division Bench of this Court in State of A.P. v. Koka Subramanyeshwar Rao, 1971 SLR 334 (DB).
17. Sri Ratna Reddy, learned Counsel appearing on behalf of some of the petitioners while adopting the arguments made by Sri Balakrishna Murthy submits that some of the DEEs who are not even included in the seniority list vide G.O. Ms. No.314, were brought into the impugned seniority list. He also submits that by virtue of the impugned GO, all the petitioners have lost the seniority by 100 to 200 positions, which is detrimental to their interests. He would also submit that G.O. Ms. No.314, dated 29-11-1994 was issued pursuant to the directions of the Tribunal and the Supreme Court, and the same was not challenged at any time. Therefore, there is no reason for the Government to again review the seniority list even though the Division Bench of this Court in WP No.5834 of 1998 upheld G.O. Ms. Mo.314, giving liberty to the Government to review the seniority of certain class of Engineers to a limited extent. He placed reliance on the judgment of the Division Bench of this Court III Wheeler, IV Wheeler and Lorry Owners' Association v. Government of A.P., (DB), in support of his contention that seniority list cannot be reopened.
18. Sri K. Prakash Reddy, the learned Additional Advocate-General appearing on behalf of the Government urged that the writ petitions be dismissed and the orders of the Tribunal impugned be sustained. He submits that in view of the directions issued by the Division Bench in WP No.5834 of 1998, the especially direction Nos.18(3) and 18(7), it is permissible for the State Government to review the seniority list, and there is no infirmity in the same. He would submit that while preparing the final seniority list vide G.O. Ms. No.314, the ratio of 371/2% and 621/2% for direct recruitment and promotions was not adhered to, and that G.O. Ms. Nos.259 and 260 conferring retrospective dates of regularisation, proceeded on a wrong premise that there were vacancies, when in fact there were no vacancies in the cadre, and therefore, it is always open to the Government to rectify the mistake. He would also submit that those GOs are not in relation to exercise of power under para 13 of the Presidential Order, and therefore, there is nothing in the rules or the Presidential Order to preclude the Government from exercising power having regard to the principles of fixing seniority as laid down by the supreme Court in various judgments dealing with R&B Engineering Service. He would also submit that the seniority inter se among direct recruits and promotees has to be maintained, and if the seniority assigned in G.O. Ms. No.314 is to be maintained, the order adumbrated in Rule 23(c) of the General Rules will have to be given a go by, and therefore, while fixing the seniority, the date of first entry into service, including temporary service was counted. Applying the same principle the petitioners cannot retain their retrospective dates of regularisation as the same would result in flouting the Special Rules. He would also submit that prior to 31-12-1982, no junior of the petitioners was promoted as DEE, and therefore, it is not necessary to assign any notional date of regularisation. Indeed in para 20 of the counter-affidavit, filed before us, it is made clear by the Government that "notional date of seniority will be assigned to the seniors on part with the juniors promoted earlier, and no junior of the petitioners in the category of Assistant Executive Engineer was promoted as DEE prior to 31-12-1982, and hence, assignment of notional date is not needed".
19. Sri A. Suryanarayana Murthy, and Sri J.R. Manohar, the learned Counsel appear for certain DEEs from other zones, who filed implead petitions being WPMP Nos.13724 and 14030 of 2001 in WP No.9077 of 2001 and WPMP Nos.22840, 16517, 16877 and 44030 of 2001 in WP No.9666 of 2001. Sri P. Balakrishna Murthy strongly opposed the implead petitions contending that the proposed respondents belong to zones other than V, VI and VII, and therefore, when the matter pertains to inter se seniority of DEEs in Zone V, VI and VII, the post of DEE being zonal post, they are not necessary parties, and they have no locus standi to come on record. However, the proposed respondents contend that though the DEE is a zonal post, the post of Executive Engineer is a State-wide post, and therefore, the issue of seniority of DEE in one zone has certainly a bearing in the matter of promotions to the post of Executive Engineers. Therefore, they no locus standi to come on record. They placed reliance on the recent judgment of the Apex Court in Vittal v. Stale of A.P., 2001 (2) SLR 18 (SC). We will consider this aspect separately.
Points for consideration:
20. In the light of the rival submissions, the following points arise for consideration:
1. Whether the petitioners in WPMPs (implead petitions) are proper and necessary parties to this writ petition?
2. Whether the Government is not justified in reviewing the seniority list of DEEs in Zones V, VI and VII, issued in G.O. Ms. No.314, dated 29-11-1993 purporting to act on the directions issued by the Division Bench of this Court in WP No.5834 of 1994?
3. Whether it is within the power of the competent authority to change the date of regularisation or date of commencement of probation after long lapse of time especially when earlier retrospective regularisation received judicial approval?
4. What is the extent and scope of power under para 13 of A.P. Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975?
5. Whether the impugned Government Order does not suffer from various infirmities and irregularities as pointed out by the petitioners?
21. Before dealing with the points that arise for consideration, it is necessary to refer to the relevant rules and the purport thereof. It is also necessary to refer to the various judgments of the Supreme Court dealing with the inter se seniority disputes between direct recruits and promotees.
Relevant Rules:
22. In Andhra Pradesh R&B Engineering Service is governed by two sets of rules - The first set of rules, popularly known as "General Rules" are the A.P. State and Subordinate Service Rules, 1962 since repealed and replaced by the 1996 Rules, with which we are not concerned. These General Rules are applicable to all the State Services and Subordinate Services in the State. The second set of rules, popularly known as "Special Rules" are the A.P. R&B Engineering Service Rules, 1965. They deal with the Engineering Services of the R&B Department. They were promulgated by the Government of Andhra Pradesh on 27-6-1967, and they came into force w.e.f. 1-4-1965.
23. The terms "appointed to a service", "approved candidate", "approved probationer" are defined in Rule 3(1)(2) and (3) of the General Rules, and they read:
(1) Appointed to a service: A person is said to be "appointed to a service", when in accordance with these rules or in accordance with the rules applicable at that time, as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof;
(2) Approved Candidate: "Approved Candidate" means a candidate whose name appears in an authoritative list of candidates approved for appointment to any service, class or category;
(3) Approved Probationer: "Approved Probationer" in a service, class of category means a member of that service, class or category who has satisfactorily completed his probation and awaits appointment as a full member of such service, class or category.
24. Rules 23, 33 and 36 of the General Rules, which are relevant for our purpose, read:
Rule 23. (a) Date of commencement of probation of persons first appointed temporarily: If a person, having been appointed temporarily under sub-rule (a) or sub-rule (c) of Rule 10 to a post borne on the cadre of any service, class of category or having been appointed to any service, class or category otherwise than in accordance with the rules governing appointment thereto is subsequently appointed to any service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine.
(b) Service in a different service counting for probation :--A probationer in a service or a class or category of a service shall be eligible to count for probation his service, if any, performed otherwise than in a substantive capacity, or regular appointment to another service, in accordance with the rules, if the normal method of recruitment to the latter service, is according to the rules, by transfer from the former service or the class or category thereof, as the case may be.
(c) Service in a higher category counting for probation :--A probationer in any category of service or class of service shall be eligible to count for probation, his service, if any, performed otherwise than in a substantive capacity on regular appointment to a higher category of the same service of class or service, as the case may be.
Nothing contained in this sub-rule shall be construed as authorising the promotion of probationer in a category to a higher category in contravention of Rule 34.
(d) Temporary service counting for probation :--A probationer in service who is appointed temporarily to another service, subordinate or State, under sub-rule (a) or sub-rule (c) of Rule 10 shall be entitled to count towards his probation in the former service the period of duty performed by him in the latter service during which he would have held a post in the former service but for such temporary appointment.
(e) Service on temporary promotion counting for probation :--A probationer in any category of service who is promoted temporarily under the provisions of Rule 37 to a higher category in the same service shall be entitled to count towards his probation, if any, in the former category the period of duty performed by him in the latter category during which he would have held a post in the former category but for such temporary promotion.
Rule 33. Seniority :--(a) The seniority of a person in a service, class, category or grade shall, unless he has been reduced to a tower rank as punishment be determined by the date of his first appointment to such service, class, category, or grade. If any portion of the service of such person does not count towards probation under Rule 10(a)(iv), 10(c), 16, 37(d) or 42(d), his seniority shall be determined by the date of commencement of his service which counts towards probation.
This sub-rule shall be deemed to have been in force on and from the 1st October, 1933 in the case of State services and on and from the 1st October, 1934 in the case of subordinate services, but shall not affect the seniority of any member of a service, which may have been fixed expressly or by implication before the 19th November, 1941, or any orders as to seniority which may have been passed by competent authority before the 19th November, 1941:
Provided that the seniority of a probationer or approved probationer in a service, class, category or grade from which he stood reverted on the 1st November, 1956 or prior to that date, shall be determined in the statewide gazetted posts and the non-gazetted posts in the Departments of the Secretariat and the offices of the Heads of the Departments, with reference to the notional date of continuous officiation arrived at by adding the total length of officiation with or without breaks in that service, class, category or grade prior to the 1st November, 1956 to the date of reappointment made thereafter in accordance with the provisions of sub-rule (c) of Rule 8, but it shall not disturb the inter se seniority which obtained in the Andhra State.
(b) The appointing authority may at the time of passing an order, appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed seniority shall be determined in accordance with it :
Provided that for the purpose of promotion to the next higher category of gazetted posts, the inter se seniority of persons recruited direct to the subordinate services during the period commencing on the 1st November, 1956 and ending with 31st December, 1973, separately in Andhra and Telangana regions shall be determined by the ranking assigned by Andhra Pradesh Public Service Commission in the common ranking list or by the competent authority as the case may be after following the rule of reservations.
(c) The transfer of a person from one class or category of a service to another class or category of the same service carrying the same pay or scale of pay shall not be treated as first appointment to the latter for the purpose of seniority; and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by appointing authority.
(d) xxx
(e) x x x
(f) X X X
(g) X X X Rule 36. Revision of list of approved candidates for appointment or promotion :--Notwithstanding anything contained in these rules or the Special Rules, the State Government shall have the power to revise in any manner they consider suitable, any list of approved candidates, for appointment or promotion to any category, class or service, prepared by the Head of a Department in exercise of the powers conferred on him by the Special Rules for any service. They shall have power to revise in any manner they consider suitable any list of eligible employees for promotion in any category, class, or service in accordance with General Rule 34(b)(ii). Such revision may be made by the State Government higher on their own motion at any time or on an application made by the person affected within a period of six months from the date of the order of appointment or promotion of his immediate junior:
Provided that the time limit of six months aforesaid may for sufficient reasons to be recorded in writing be waived by the State Government.
25. According to the Special Rules, appointment to the post of Deputy Executive Engineers is both by way of direct recruitment and recruitment by transfer from the post of Assistant Executive Engineers/ Assistant Engineers in a specified ratio. The Special Rules do not deal with the question of regularisation or fixation of seniority. The said question is only dealt by the General Rules, which are applicable to all the employees governed by the Special Rules.
A Summary of Egrlier Litigation:
26. There have been disputes in Roads and Buildings Department among the direct recruitee engineers on the one hand and the promotee engineers on the other hand. Even between the two categories of engineers, who are eligible for promotion to the post of Deputy Executive Engineers, i.e., Assistant Executive Engineers (degree holders) and Assistant Engineers (diploma holders), there have been disputes.
27. In the year 1972, the Government of Andhra Pradesh/Chief Engineer regularised the services of M/s. B. V. Venkataramana and Ramachandra Murthy retrospectively as DEEs. At the relevant time, the post was designated as Assistant Engineer. This was subject-matter of writ petition before this Court, and this Court directed that the case of the writ petitioners therein should be considered in accordance with the seniority in the cadre of Deputy Executive Engineers. The Government passed an order inter alia stating that the writ petitioners therein had not come up for selection. In so stating the Government considered retrospective date of regularisation of M/s. B. V. Venkataramana and Ramachandra Murthy. Therefore, a second writ petition was filed, and it was dismissed by the learned single Judge, and the writ appeal was also dismissed by the Division Bench. The matter was carried to the Supreme Court in D. Rama Rao v. State of A.P., . The Supreme Court adverted to Rule 23(a) of the General Rules and held that the date of regularisation of an employee can even relate back to a date prior to the date of appointment, and when such a course is resorted to, the same is not vitiated on account of arbitrariness.
28. In Siva Reddy's case, the Apex Court again considered the dispute in a batch of writ petitions, filed by several directly recruited DEEs under Article 32 of the Constitution of India. In those cases, the petitioners challenged the order of the Chief Engineer retrospectively regularising temporary services of promotees in the years 1972-73, 1973-74, 1974-75 in the cadre of DEEs. The main complaint was that there had been under recruitment by the method of direct recruitment, and candidates recruited through other two modes came into the cadre far in excess of the limit provided by the special rule, and regularisation of such promotees had been made exercising powers under Rule 23 of the General Rules reducing the qualifying service from five years to three years in the lower cadre of AEEs. It was contended that the seniority rule in Rule 33 cannot be allowed to override the recruitment rules. The Supreme Court noticed that since 1982 there has been dispute as to regularisation of promotees, and the APAT had ordered the State to work out the rule properly. Having regard to the same, the Supreme Court observed that 'reopening the question of inter se seniority on the basis of non-enforcement of the rules from the very beginning would cause hardship, and that it would be difficult to mitigate, but there is justification to give the benefit of the scheme under the rules atleast from 1982'. Accordingly, the Supreme Court ordered as follows:
..... We are of the view that the regularisation made in respect of the promotees of the year 1972 to 1975 should not at this point of time be disturbed particularly when the regularisation has been subsequent to the actual commencement of continuous service in the post of Assistant Engineer
29. The Supreme Court also directed that the State Government must ascertain the exact number of substantive vacancies that fell for direct recruitment category w.e.f. 31-12-1982 and take steps to fill up the same without applying the General Rules to the posts within the limits of 37 1/2% of the substantive vacancies, and even if promotees are placed in those posts, no seniority shall be counted in respect of 37 1/2% direct recruitment vacancies.
30. In K.R. Prasad v. Rosaiah, , the Supreme Court reiterated the principles laid down in Siva Reddy's case, and issued similar directions with reference to DEEs in the Irrigation Department. Pursuant to the directions issued in Siva Reddy's case, the Government of Andhra Pradesh issued a circular laying down guidelines for drawing up of seniority lists. These guidelines were again challenged before the Supreme Court under Article 32 of the Constitution of India by the petitioners therein for promoting Engineers of R&B Department. In the said case i.e., C. Radhakrishna Reddy and others v. State of A.P. and others, 1990 (1) SLR 136, the main contention of the petitioners was that by 1982, the promotee Engineers had put in continuous service of six to seven years, and that their services having been regularised as DEEs in the year 1974-75, the direct recruits appointed in the year 1982 cannot be placed above them. The Supreme Court while dismissing the writ petitions, upheld the guidelines and observed in para 4 as under:
.....Taking into consideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would considerably affect the officers concerned, regularisation was not interfered with. This Court's intention obviously was not to take away the benefit of regularisation in respect of the officers belonging to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority.....
31. In Hanmanth Rao's case (supra) the directions issued in Siva Reddy's case (supra) and Radha Krishna Reddy's case (supra) again came up for consideration before a three Judge Bench of the Supreme Court. The Supreme Court again considered the issue having regard to the observations made in the two judgments referred to earlier, and held:
.....On the other hand, the Court had taken a very equitable view in not disturbing the regularisation contrary to the quota and had taken every care to ensure that the cause of justice was not made to suffer and a balance was maintained by an appropriate admixture of relief of confining the reconsideration for a period after 1982. The year 1982 was fixed, as the reasoning indicate, on account of two features -(i) that regular disputes had been raised from that time; and (ii) a period 5-6 years was not too long a period to give rise to a sense of conclusiveness generated by long lapse of time. The promotee Engineers should have been happy and thankful to their lot that their regularisation was not disturbed and even seniority prior to 1982 was not being affected. Oblivious of these benefits, which they have retained though acquired out of turn, they have proceeded on the footing that their cause has been affected and justice to them has been denied by placing a group of them below the 1982 recruits.....
32. In J. Chandrashekhar Reddy v. D. Arora, Chief Secy., A.P. Govt., , contempt petitions were moved before the Supreme Court contending that the Government committed breach of the directions given by the Apex Court in Siva Reddy's case. The Supreme Court having noticed the inconsistency in the observations made in Siva Reddy's case (supra) and Hanmanth Rao's case (supra), summarised the effect and purport of the directions issued earlier in Siva Reddy s case as under:
(1) All appointments made prior to 31-12-1982 whether of promotee DEEs or of direct recruit DEEs, including promotees who were regularised during the years 1972-75, and their inter se seniority cannot be disturbed.
(2) For the purpose of determining substantive vacancies as on 31 -12-1982 for direct recruitment both permanent as well as temporary posts shall be considered.
(3) The appointment of promotees/ transferees made disregarding seniority of 37 1/2% for direct recruits ought to be displaced or brought down as the case may be by appointing direct recruits in the vacancies to the extent of 37 1/2%. The direct recruits so adjusted are to be given seniority, including deemed dates of appointment over the promotees/ transferees in the vacancies earmarked for direct recruitment quota during the said period.
(4) The seniority list was to be drawn up by showing the list of Engineers in the following order:
(a) Direct recruits/promotees who were appointed in the vacancies upto, and inclusive of 31-12-1982.
(b) The DEEs appointed in accordance with the directions given in Siva Reddy's case as on 31-12-1982, and vacancies from that date till the shortfall of direct recruits and to the extent of 37 1/2% quota was made up.
(c) The DEEs appointed after the shortfall of the direct recruits was made up according to the quota in the vacancies between 31-12-1982 and 31-12-1987 and onwards.
33. Be it noted with referring to the observations and directions issued in Siva Reddy's case (supra) in juxtaposition with the directions issued in Hanmanth Rao's case (supra), the Supreme Court categorically held that the directions issued in para 5 (five) of the judgment in Hanmanth Rao's case (supra) must be taken to have finally set at rest the ambiguity as to whether seniority of those who were appointed prior to 1982 was to be disturbed or not. Accordingly, it was held in para 10 as follows:
We are, therefore, more than satisfied that neither the appointments nor the inter se seniority of those who were appointed in the vacancies prior to 31-12-1987 was to be disturbed at all while giving seniority to the direct recruits who were appointed as per the directions given in Siva Reddy's case in the vacancies existing on 31-12-1982 plus the vacancies accruing thereafter till 31-12-1987. There is nothing brought to our notice which the State Government has done so far to commit the breach of the direction given in Siva Reddy 's case, as interpreted by this Court earlier and by us as above. We have above the statement of the learned Additional Solicitor-General that while appointing the direct recruits for adjusting them in their seniority in the vacancies from 31-12-1982 to 31-12-1987, the State Government will take into consideration the vacancies that existed on 31-12-1982 as well.
34. Before we summarise the principles of law for the preparation of inter se seniority among direct recruit DEEs and promotee DEEs from 1965 to 31-12-1982 on the one hand and 31-12-1982 to 31-12-1987 on the other, we may notice yet another judgment of the Apex Court in Govt. of A.P. v. Suryanarayana Rao, , which finally settled the legal position laying down that all promotions of Assistant Executive Engineers to the next higher post of Deputy Executive Engineers have to be made on the basis of zonal seniority list and not on the basis of Statewide seniority list of Assistant Executive Engineers. It was also directed therein that for the purpose of promotion to the post of Executive Engineer from the post of DEE, State-wide seniority list of DEEs of all the zones has to be prepared, which would form the basis for promotion to the post of Executive Engineer. The case arose under A.P. Panchayat Raj Engineering Service Rules, 1963 after coming into force of the Presidential Order. This has some bearing on the decision in this case also because the learned Counsel for the petitioners raised a ground that when once the local cadres are organised for the purpose of DEEs and posts are adjusted and allocated by fixing panel years, the Government is denuded of power to resort to any review of the same. This will be considered at the appropriate place.
35. Having regard to various pronouncements of the Supreme Court, we may summarise the relevant principles to the extent necessary as under:
(1) Regularisation of an employee i.e., promotee DEE with retrospective date is not arbitrary and not contrary to Rule 23 of the General Rules, [see Rama Rao 's case (supra)] (2) The regularisation of promotee DEEs during the years 1972-75 even if it is in excess of their quota cannot be disturbed. [see Siva Reddy's case (supra)] (3) While giving seniority to the direct recruits who were appointed in their quota of 37 1/2% in the vacancies that existed between 31-12-1982 and 31-12-1987, neither the appointment nor the inter se seniority of the DEEs appointed in the vacancies prior to 31-12-1982 shall be disturbed, (see Radhakrishia Reddy's case, Hanmanth Rao's case, and Chandrashekhar Reddy's case).
36. Keeping these principles in view, we may now consider the points that arise for consideration.
In Re Point No. 1:
37. Whether the petitioners in WPMPs (implead petitions) are proper and necessary parties to this writ petition?
38. The dispute in these cases is regarding seniority of DEEs in Zones V, VI and VII and change of dates of regularisation of the petitioners belonging to these zones. The impugned GO purports to be an order by the Government in exercise of their powers under Rules 23(a) and 33 regularising the services of the petitioners from the dates indicated in the Annexures I, II and III to the GO. The grievance made by the writ petitioners is that all of them were regularised finally in G.O. Ms. Nos.259 and 260 dated 22-12-1993 giving a date of regularisation retrospectively and showing them in different panel years and by the impugned GO the seniority list was changed. G.O. Ms. No.72 contains three Annexures like earlier G.O. Ms. No.314. Annexure-I consists of seniority list of DEEs from 1965 to 1974-75 upto 18-10-1975, i.e., when the Presidential Order came into force. Annexure-II consists of seniority list of zone-wise seniority list of DEEs for the period from 18-10-1975 to 31-12-1982 and Annexure-III consists of zone-wise seniority list of DEEs appointed in the identified vacancies of 31-12-1982 and in the vacancies upto 31-12-1987. With reference to these Annexures as summarised by the Tribunal in the impugned judgment, the service particulars of the petitioners are as follows :
SI. No. Name S/Sri Status Appointment as DEE Notional promotion Seniority as per GO 314 dared 29-11-1994 Seniority as per GO 72 dated 6-5-2000
1.
M. Shyamsunder Petitioner No.1 in WP 907712001 31-5-1983 4-10-1979 10-Annexure-ll 02-Annexue-lll
2. P. Kishan Petitioner No.2 in WP 907712001 9-8-1982 31-8-1980 31-Annevure-ll 51-Annexure-ll
3. G. Vasantha Reddy Petitioner No. 3 in WP 9077/2001 14-2-1984 31-8-1982 35-Annexure-ll 10-Annexure-lll
4. G.S. Raj Kumar Petitioner No.4 in. WP 9077/2001 26-8-1983 1-9-1981 22-Annexure-ll 14-Annexure-lll
5. K. Sudhakar Petitioner No.5 in WP 9077/2001 23-2-1984 15-8-1983 33-Annexure-ll 15-Annexure-lll
6. N. Narasimha Reddy Petitioner in WP 966612001 1-6-1984 31-8-1982 39-Annexure-ll 14-Annexure-lll
7. M. Vishweswara Rao Petitioner No.2 in WP 1365312001 26-4-1984 19-4-1984 37-Annexure-!l
-
8. P. Pulla Reddy Petitioner No.2 in WP 13655/2001 24-4-1989 1-9-1980 41-Annexure-lll
-
9. D. Pralap Reddy Petitioner in WP 13656/2001 1-8-1986 6-10-1987 10-Annexure-lll
-
10. M. Janardhan Reddy Petitioner in WP 13657/2001 25-7-1986 16-8-1986 05-Annexure-lll
-
39. By virtue of the impugned action the position of the petitioners in the seniority list either in zone V, zone VI or V!I was changed and due to that, seniority position of any of the Deputy Executive Engineers in other zones, namely, I, II, III and IV was not in any way affected. In any event no such OA was directly filed by any of the DEEs belonging to other zones challenging G.O. Ms. No.72. After the judgment of the Supreme Court in Suryanarayaua Rao's case (supra) it is settled that the posts of DEEs are zonal posts. The promotions of AEEs as DEEs have to be made on the basis of zonal seniority list and not on the basis of State-wide seniority list. The petitioners in all the implead petitions contend that any changes in the zone-wise seniority of DEEs would ultimately effect the promotion chances of other DEEs in other zones and therefore they are proper and necessary parties to implead in these proceedings.
40. We are afraid, we cannot agree with the submissions. In exercise of powers conferred under Article 371-D(1) and (2) the President of India promulgated Presidential Order vide GSR No.524(E) which was notified vide G.O. Ms. No.674 General Administration (SPF-A) Department dated 29-10-1975. The same came into force with effect from 18-10-1975. As per this order, the State is divided into six zones. It is not disputed that as required under paragraph 3 of the Presidential Order, the State Government organised zone-wise local cadres for R&B Engineering Service with effect from 17-7-1977. As per paragraph 5 of the Presidential Order when once local cadre is organised in respect of the posts in the local cadre the zone shall be a separate unit for the purpose of recruitment, appointment, discharge, seniority, promotion and transfer and such other conditions of services as may be specified by the State Government in respect of that category of posts. There cannot be only iota of doubt that only members belonging to a particular local cadre can make out the grievance in respect of conditions of service in a particular zone. In the case on hand, by virtue of G.O. Ms. Nos.259 and 260, dated 22-12-1993 the Government changed the year'of penal in respect of certain employees belonging to zones V and VI on the ground that there is shortfall of vacancies and that the vacancies in these two zones were occupied by DEEs belonging to other zones. In Suryanarayana Rao's case (supra), the Supreme Court categorically held that seniority lists of DEEs shall be made on zone-wise only and any changes made in zonal seniority list cannot be held to effect, much less, affect adversely the interests of other employees in other zones. The promotion to the post of AEE and DEE, and thereafter to the post of Executive Engineer is on the basis of merit-cum-seniority. The posts are selection posts and therefore any apprehended detriment to the Engineers in other zones is very remote. In this regard, we should remind ourselves the concept of 'necessary party' and 'proper parry'. The proposed respondents are neither necessary parties nor proper parties. The learned Counsel, however, placed reliance on the judgment of Vittal's case (supra). The submissions made in the said case are in fact contrary to the submission made before us. The contention before the Supreme Court was that cadre of Sub-Inspectors and Inspectors being zonal cadre, the officers of other zones should not have locus standi to assail seniority of the officers belonging to one zone and therefore the impugned therein suffered from an error in that the officers belonging to other zones were allowed to challenge the seniority list in different zone. Adverting to the submission the Apex Court observed as under:
...Though we find sufficient force in the aforesaid contention inasmuch as officers (Sub-Inspector and Inspector) of each Zone constitute a cadre and it is the zonal seniority cadre, which was the subject matter of challenge before the Tribunal. Rut it appears that the promotion to the post of Deputy Superintendent of Police is made on the integrated seniority of Inspectors throughout the State, and if some of the officers within a zone get accelerated promotion or promotion which could not have been given in the absence of suitable number of vacancies, then that may affect the right of the people belonging to the other zones in getting promotion to the post of Deputy Superintendent of Police.
Taking into consideration certain factual errors, which crept into the judgments challenged before it, the Supreme Court remanded the matter to the Tribunal for fresh adjudication.
41. The judgment of the Supreme Court in Vittal's case (supra) would not support the contention of the implead petitioners. Therefore, we sustain the objection raised by the writ petitioners for impleading those DEEs belonging to other zones as they are neither proper parties nor necessary parties.
42. Furthermore, those DEEs belonging to other zones who want to be impleaded in these writ petitions were not before the Tribunal and they did not choose to file any such petitions before the Tribunal. This is another distinction from Vittal's case (supra) and this case. Be that as it may we allowed the learned Counsel for the proposed respondents to make their submissions and also file written submissions. We have considered these submissions and they have no bearing on the points we have framed for consideration. We accordingly decide Point No.1 in favour of the writ petitioners and against the proposed respondents holding that the proposed respondents are neither necessary parties nor proper parties. The miscellaneous petitions, filed for impleadment are dismissed.
In Re Point Nos.2 and 4:
43. Whether the Government is not justified in reviewing the seniority list of DEEs in Zones V, VI and VII, issued in G.O. Ms.No.314, dated 29-11-1994 purporting to act on the directions issued by the Division Bench of this Court in WP No.5834 of 1994?
44. What is the scope and power of para 13 of A.P. Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 and Rule 36 of the A.P. State Subordinate Service Rules?
45. These two points can be considered together. Before the Tribunal it was contended on behalf of the Government that earlier on a premise known that the cadre strength in Zones V, VI and VII have not been properly filled G.O. Ms. Nos.259 and 260 and G.O. Ms. No. 18 were issued. These two orders were upheld by the Tribunal. Though the SLP against that judgment was dismissed, no order on merits was passed and therefore the Government has power to review the panels, which was already modified/reviewed in the two Government Orders. It was also the submission that final seniority list in G.O. Ms. No.314 was issued based on the earlier two Government Orders which were not correct. Therefore, after the judgment of the Full Bench in OA Nos.41796 of 1997 and batch which was modified by this Court in WP No.5834 of 1998 the Government thought it fit that it is now permissible to rectify the mistakes and review/revise the seniority list which is not illegal nor contrary to Special Rules or General Rules. The same position is reiterated before us. Sri P. Balakrishna Murthy, however, submits that G.O. Ms. Nos.259 and 260 were issued in exercise of power conferred in paragraph 13 of the Presidential Order and therefore it is not permissible for the Government to resort to review for second time. It is further contended that as the Tribunal has confirmed the validity of the G.Os.259 and 260 it is not open to the Government to again revise the final seniority list issued in G.O. Ms. No.314 dated 29-11-1994.
46. The seniority list of DEEs from 1-4-1965 to 31-12-1982, and thereafter till 31-12-1987 has been subject-matter of litigation. At no point of time till issuance of G.O. Ms. No.314 there was seniority list, which could be called final. When the matter was pending at various stages of litigation, the Presidential Order came into force. As noticed supra clause (10) of Article 371-D of the Constitution of India gives an overriding effect to Article 371-D as well as "any order made by the President thereunder". Therefore, the Presidential Order insofar as recruitment, appointment, discharge, seniority, promotion and transfer and in respect of such other matters, as may be specified by the State Government, has overriding effect. Indeed, para 5 of the Presidential Order says that each part of the State for which local cadre has been organised shall be separate unit for the purpose of conditions of service referred to herein. As a necessary corollary, even in matters of appointment, promotion and seniority, Presidential Order alone shall prevail. The Special Rules had not contemplated the method and manner of preparing the seniority list, and only General Rules deal with the same. When there is overlapping between the General Rules and the Presidential Order, the Presidential Order alone shall have to be given full effect.
47. As required under para 3 of the Presidential Order, the State Government within a period of 18 months from the commencement of the Presidential Order i.e., from 18-10-1975 shall have to organise classes of posts in the civil service into different local cadres in different parts of the State. If the local cadres are not organised under para 3 of the Presidential Order within a period of 18 months, then what would happen? The proviso to para 3 states that notwithstanding the expiration of the period of 18 months, the President may require the State Government to organise any classes of posts into civil services and classes of civil posts in the State into different local cadres for different parts of the State. This aspect of the matter was considered by a three-Judge Bench of the Supreme Court in Prakash Rao v. Commissioner of Commercial Taxes, . The relevant observations are as follows:
.....In our considered view, we have no hesitation to hold that once the State Government has organised the class or classes of posts in the civil services of and class or classes of civil posts, under the State as local cadres, it ceases to have any power to bifurcate or reorganise a zone within a zone, cadre or cadres therein. In exercise of the power under proviso to paragraph 3(1), it is for the President notwithstanding the expiry of the period of twelve months prescribed in sub-paragraph (1) of paragraph 3, by an order require the State Government whenever he considers it expedient so to do to have the power under paragraph 3(1) exercised. Thereby, it is clear that the State Government shall have to place necessary material before the President;
the President shall consider that it is expedient to organise any class or classes of posts in the civil services of and class or classes of civil posts, under the State into a further local cadre within the local cadre in the zone already prescribed and to pass an order in that regard requiring the State Government to so organise it. It is made clear that for the purpose of efficient administration or convenience, the State Government may create division/divisions within the local area or local cadre. But for the purpose of recruitment, seniority, promotion, discharge, etc., the local cadre once organised under para 3(1) shall be final and continue to be operative until action is taken under proviso to sub-paragraph (1) of paragraph 3 of the Order.....
48. After organisation of the local cadres for different parts in the State, the State Government or any officer authorised by it shall allot persons holding posts required to be organised in the local cadre, as adumbrated in para 4(2) to various zones. Any appointment or promotion made after the commencement of the Presidential Order and before any local cadre is organised, as per para 13, all such appointments shall be treated as provisional, and within a period of 12 months after such organisation, the appointments shall be reviewed and readjusted in accordance with para 4 of the Presidential Order. Though the local cadres were organised for posts in A.P. R&B Engineering Service w.e.f. 17-7-1977, there was some controversy with regard to the posts of DEEs as to whether they are Zonal posts or State posts till Suryanarayana Rao's case (supra). In the meanwhile, in various judgments of the Supreme Court, to which a reference has already been made, directed preparation of seniority list for the following periods:
(i) From 1-4-1965 i.e., from the date of formation R&B Department upto 18-10-1975, the date on which the Presidential Order came into force;
(ii) From 19-10-1975 to 31-12-1982, the cut-off date fixed by the Supreme Court for the purpose of regularisation, including retrospective regularisation; and
(iii) From 1-1-1983 to 31-12-1987, with which the entire litigation in all forums was concerned.
49. While the process of preparation of seniority list was going on, certain DEEs belonging to Zone V and Zone VI represented to the State Government that there was shortfall of local candidates in the vacancies in these two zones in the category of DEEs as on 18-10-1975, and requested to make up the shortfall. Be it noted that para 8 of the Presidential Order makes it mandatory that 60% of the posts of AEEs shall be reserved in favour of "local candidates", (as defined in para 7) in relation to "local area" (as defined in para 6 of thereof). Be it also noted that the posts of Executive Engineers in each of the zones have to be filled up by restricting the zone of consideration to the AEEs of a particular zone only. The Government considered the representations of the DEEs of Zones V and VI with reference to the total number of vacancies - both permanent and temporary, and not the cadre strength. (Para 8 of the Presidential Order speaks of posts and not cadre). The Government found their grievance to be genuine. After consulting the A.P. Public Service Commission, as required under Article 320(3) of the Constitution of India read with the relevant A.P. Public Service Commission Regulations, 1963, the Government issued G.O. Ms. No.259 in respect of Zone V and G.O. Ms. No.260 in respect of Zone VI, revising the approved panels of the officers, fit for promotion as DEEs. It was recorded in the two GOs that in Zone V there was shortfall of 17 posts of DEEs and in Zone VI there was shortfall of four posts i.e., vacancies that were shown as shortfall were not occupied by local candidates belonging to those zones, but were occupied by members belonging to other zones. If the posts in Zones V and VI were allowed to be occupied by members of the service belonging to other zones, the same would violate the Presidential Order as also Article 371-D of the Constitution of India. These two GOs were issued on 22-12-1993 to mitigate the hardship caused to a class of personnel in the two zones. It may be noted here that the Government also issued orders relaxing the Rule 33(a) of the General Rules, in respect of DEEs in all the zones by various Government Orders, revising the dates of regularisation of various DEEs in different zones, including Zones V, VI and VII. The reasons given in the aforementioned two GOs, are as follows:
Government after careful examination of the matters, found that there was a shortfall of (17) posts of Deputy Executive Engineers belonging to Zone V as on the date of promulgation of the Presidential Order, i.e., 18-10-1975 and that at the time of preparation of the year-wise panels, it was wrongly noted that there were no vacancies for the panel years 1975-76 that the persons who were eligible for promotion were actually promoted in the subsequent panel years and their non-inclusion in the panel 1975-76 was because of wrong notion that the vacancies were 'Nil' to mitigate the hardship caused to the class of personnel in Zone V, Government have decided to fill up the said shortfall by including the eligible candidates (who were included in the subsequent panels), in the panel year 1975-76 and make good the said shortfall.
A bare perusal of the above indicates that on a wrong notion that there were no vacancies, persons who were eligible for promotion were actually promoted in the subsequent panel years later to 1975-76, and therefore, to mitigate the hardship the above GOs were issued. In other words, the persons who were promoted in subsequent panel years are being pushed up in 1975-76 panel years, then by virtue of the two GOs, those people who were promoted subsequently may be after 31-12-1982 would also get pushed up into the vacancies which were hitherto filled up by other DEEs, who now go up into the previous year's panel. Before the APAT, G.O. Ms. No.259 was challenged in OA Nos.7228-9 of 1993 and 172 of 1994, G.O. Ms. No.260 was challenged in OA Nos.362 of 1994, and whereas in OA Nos.2355, 2834 and 2838, both the GOs were challenged. The Tribunal after considering the vires of the two GOs, by a well considered judgment dated 23-11-1994, dismissed all the OAs upholding the validity of the said GOs. It was observed therein as under:
........... But in these cases only the impugned GOs.259 and 260 are challenged by which the ad hoc panels in the two zones are revised. From the contents of the GOs and the counter affidavit of the Government, it is clear that even though vacancies were available in 1975-76, the authorities had indicated as Nil for these zones. This naturally deprives the persons who were eligible to be appointed by promotion or transfer to these posts during the relevant period......... The fact is that the vacancies and eligible candidates for appointment by promotion or transfer were available and the vacancies have been filled up (as is made out by mistake), cannot be disputed. The present action of the Government is only correcting the mistake. It has indicated the number of posts in the cadre, the number of posts which are not filled up and it is now filling up them by some persons......
50. The Tribunal also observed that whether or not the benefit of seniority should be extended to the petitioners therein, as provided by the two GOs, has to be decided only after the seniority cases are finalised, and that it is competent for the Government to issue orders in accordance with the provisions of the Presidential Order. Indeed in para 2 of the counter-affidavit, filed by the Government in OA No.2355 of 1994, one of the seven cases where the GOs were challenged, the Government categorically stated that review for the purpose of readjustment and reallotment was made as per para 13 of the Presidential Order.
51. As already noticed, in the meanwhile OA Nos.41796 and 41797 of 1991 were filed before the Tribunal by certain DEEs whose names were not considered by the DPC. While these OAs were pending, the Government keeping in view the interim orders passed by the Tribunal therein on 16-4-1993, started the exercise of preparation of zone-wise seniority list of DEEs. Taking into consideration the orders giving relaxation of Rule 33(a) of the General Rules for the panel years 1975-76 to 1981-82, the Government proposed to revise the seniority list of DEEs, appointed/ promoted after 1965, and by Memo No.120/ Ser.II. 1/92-5, dated 30-6-1993 directed the Engineer-in-Chief to communicate the provisional seniority list to all affected DEEs calling for their objections. In the provisional seniority list, against the names of all the petitioners, the retrospective date of regularisation was shown. It is not denied that with reference to this aspect of the matter, the affected DEEs if any did not raise any objection. After considering all the objections, the Government issued G.O. Ms. No.314, dated 29-11-1994, approving the final zone-wise seniority list of direct recruits and promotee DEEs, appointed after 1-4-1965. As already mentioned, Annexure I to III to G.O. Ms. No.314 contain seniority lists of DEEs. These seniority lists were prepared based on each panel year from 1965-66 onwards. Annexure I contains seniority list from 1965 to 18-10-1975; annexure II contains zone-wise seniority list of DEEs appointed between 18-10-1975 and 31-12-1982, and Annexure III contains zone-wise seniority list of DEEs, appointed in the vacancies as on 31-12-1982 and in other vacancies that arose from that date till 31-12-1987. All the petitioners, except the petitioners in WP Nos.13655-57 of 2001, were placed at respective places in Annexure II i.e., zonal seniority list of DEEs, appointed between 18-10-1975 and 31 -12-1982, duly showing the date of regularisation from the date when they were given notional promotion by virtue of the relaxation orders or by virtue of G.O. Ms. Nos.259 and 260.
52. More than four years after issuance of G.O. Ms.No.314, the Tribunal by its judgment dated 22-10-1997, disposed of OA Nos.41796-97 of 1991 inter alia giving directions which we extracted supra. The Tribunal having been apprised about the issuance of G.O. Ms. No.314 and two other GOs being G.O. Ms. Nos.38 and 147, making modifications to G.O. Ms. No.314, gave liberty to the Government to verify whether the correct date of regularisation is given as per the principles laid down in its judgment. This judgment was challenged by the Government in WP No.5834 of 1998, which was heard along with two other writ petitions. The Government sought to justify its action and sustain the final seniority list of DEEs approved in G.O. Ms. No.314. A Division Bench of this Court by judgment dated 23-7-1999 while disposing of the writ petitions set aside all the directives issued by the Tribunal in OA Nos.41796 and 41797 of 1991 which rim contra to the directives issued by the Division Bench. The finding of the Tribunal that promotee Engineers cannot count their seniority from the date of entry into their service and shall have to wait for their turn in the vacancies of 62 1/2% earmarked for them was specifically, set aside. Further the Division Bench in direction No. 18(4) held that all the promotee DEEs, are entitled to retain their promotions effected during the period from 1-4-1965 to 31-12-1982, basing on their first entry into service.
53. The learned Additional Advocate-General strongly placed reliance on the said direction 18(4) issued by the Division Bench as also the observations made by the Tribunal in its judgment dated 23-11-1994 while upholding G.O. Ms. Nos.259 and 260 to the effect that the inclusion of persons in ad hoc panels has to be reviewed in the light of the seniority list to be finalised. He also submits that while issuing G.O. Ms. Nos.259 and 260, no review was undertaken as para 13 of the Presidential Order.
54. In the light of the above discussion, it is to be seen whether the submission made by the learned Additional Advocate-General holds water. While defending G.O. Ms. Nos.259 and 260, the Government placed reliance on para 13 of the Presidential Order. G.O. Ms. No.314 was issued giving due effect to the two GOs as well as various orders issued by the Government relaxing Rule 33(a) of the General Rules. In OA Nos.41796-97 of 1991, the Government justified issuance of G.O. Ms. No.314. Even in the affidavit filed in WP No.5834 of 1998 and batch, filed challenging the judgment of the Tribunal in the OAs, the Government justified issuance of G.O. Ms. No.314, and the orders leading to the passing of the said GO. Nowhere it was contended that the exercise of the power under Para 13 was not resorted to earlier. Even in Memo No.1827/Ser.II./1/93-39, dated 6-3-2000, the Government even did not make a whisper that they have yet to exercise power under Para 13 of the Presidential Order. Needless to say that the Government vide Memo dated 6-3-2000 was challenged in various original applications before the Tribunal out of which these writ petitions arise.
55. A reading of the said memo shows that the Government noticed that in G.O. Ms. No314, dated 29-11-1994, the dates of commencement of probation and seniority of DEEs included in Annexures I and II of the said GO are not from the dates of entry into service for the period from 1-4-1965 to 31-12-1982, and therefore, purporting to be in furtherance of direction 18(4) of the judgment of this Court in WP No.5834 of 1998, the Government thought it necessary to rectify the same to be inconformity with the directions of this Court. Therefore, the exercise was undertaken and notice to that effect was ordered to the DEEs whose names were indicated in Annexures I to IV to the said memo. Even in the memo, the Government did not mention that G.O. Ms. Nos.259 and 260 were issued incorrectly nor indicated their mind to withdraw the relaxation. Various OAs were filed challenging the Government Memo, which were amended after issuance of the impugned GO. The Government filed counter-affidavit in OA No.3081 of 2000 in which G.O. Ms. No.72, dated 6-5-2000 itself was challenged as being illegal and arbitrary and for a consequential direction to give effect to G.O. Ms. Nos.314, 147 and 38. Even in the counter-affidavit filed, the Government did not deny the fact that they had exercised power under Para 13 of the Presidential Order. Having exercised the power under Para 13 of the Presidential Order, is it permissible for the Government to again review and readjust the postings?
56. Sri P. Balakrishna Murthy, learned Counsel for the petitioners has placed reliance on various judgments in support of his contention that a second review is not permissible. It is settled law that in the absence of power to review, a statutory body cannot be considered to have inherent power of review, and in this regard, we may refer to the judgments of the Apex Court in Thakershi's case (supra), and the judgments of this Court in Dr. Surma's case and Prakash Archibald's case. The principle pressed before us is axiomatic, and it is not necessary to elaborate on this point further.
57. The Counsel for the respondents placed reliance on the judgment of the Apex Court in R.R. Verma v. Union of India, , to submit that the principle cannot be applied to an administrative decision.
58. In Verma's case (supra), the constitutional validity of Rule 3 of the All India Services (Conditions of Service Residuary Matters) Rules, 1960 was one of the questions, which fell for consideration. While the said rule conferred power to relax the rules and regulations in case there is undue hardship in a particular case. That the rule confers upon the Central Government absolute and arbitrary discretion was the argument before the Supreme Court. While holding that the said rule does not vest the Central Government to do what they like, regardless of right or wrong, and but only vests with a reserve power to deal with the unforeseen and unpredictable situation, the rule was validated by the Apex Court. In the context, yet another submission was made that the Government had no power to review its earlier order to relax, the Supreme Court after referring to Thakershi's case (supra) and other cases observed as under:
.......We do not think that the principle that the power to review must be conferred by statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government be free to alter its policy or its decision in administrative matters. If they are to carry on their daily administration they cannot be hidebound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court......
59. Subject to observing principles of natural justice where the rights of the parties arc affected and subject to obeying of statutory requirements, it is always open to the administrative authority to review the decisions, This principle, however, cannot be applied to the facts of this case. We have already noted that the Government already exercised power under para 13 of the Presidential Order, and noticing the fact that for the panel year 1975-76, the vacancies were shown as nil, by mistake, gave retrospeclive dates of regularisation to the petitioners in exercise of powers under para 13. In all the pleadings before the Tribunal in the earlier litigation and also before this Court, the Government reiterated their stand. On the principle of appropri vigor, the Government is bound by these principles, and cannot now turn back and say that power under para 13 of the Presidential Order was not exercised, and therefore, it is open to them to exercise. The Government has not even demonstrated before us that there were no unfilled vacancies or posts when G.O. Ms. No.259 and 260 were issued.
60. It may be seen that para 13 of the Presidential Order permits review and readjustment of vacancies/posts zone-wise only once, because the explanation to para 13 makes it clear that local cadre shall be deemed to have been organised with allotment of persons under para 4. When once persons are allotted and such allotment is readjusted and reviewed under para 13, the Government is denuded of the power. No such power, as is claimed, vests in the Government. In fact the proviso to para 3(1), as interpreted by the Supreme Court in Prakash Rao's case (supra), also supports our view. We therefore, hold that the Government has no power to review and readjust the allotment of petitioners to the posts duly giving the dates of regularisation retrospectively. Indeed, the Division Bench of this Court in WP No.5834 of 1998 also did not give any such direction. To our mind, various judgments of the Apex Court in Rama Rao, Shiva Reddy, Hanmanth Rao, Chandrashekar Reddy and Radha Krishna Reddy (supra), were dealing with the dispute as to inter se seniority between direct recruits and promotees and the WP No.5834 of 1998 before the Division Bench of this Court also related to the inter se seniority dispute among direct recruits and promotees, and the same does not in any way deal with retrospective dates of regularisation given to the petitioners, nor the exercise of power by the Government under para 13 of the Presidential Order. In any event, those decisions support the view we have taken as above.
61. The directions issued by the Division Bench of this Court in WP No.5834 of 1998 have to be understood by reading all of them together, and direction 18(4) cannot be read in isolation. It is not a direction to the Government to change the dates of reguiarisation. To our mind, para 3 of the memo, dated 6-3-2000, is the result of non-application of mind by the Government. What this Court intended in direction 18(4) is that the promotees shall retain their relevant Inter se seniority regardless of their quota, based on their date of regularisation. In this connection, we may notice that as per Rule 23 of the General Rules read with Rule 3(3), a person shall be deemed to have entered the service from the date of entry into service as well as from the date of regularisation, which could be anterior to the date of entry, as laid down by the Supreme Court in Rama Rao's case. We may reiterate again that the directions issued by the Division Bench of this Court in 18(4) has to be read alongwith directions 18(1), 18(3) and 18(5). We are therefore unable to agree with the submission made by the learned Additional Advocate-General as well as other Counsel who argued in support the judgment of the Tribunal.
62. There is yet another reason to reject the contention of the learned Additional Advocate-General. As per clause (10) of Article 371-D of the Constitution of India, the Presidential Order has given an overriding effect. In such a situation, even in the absence of orders relaxing Rule 33(a) of the General Rules by virtue of the orders passed in G.O. Ms. Nos.259 and 260, the dates of regularisation which were given to the petitioners with reference to the anterior panel years, cannot be changed, having regard to the overriding effect given to the Presidential Order. In this context, we may observe that Article 371 -D of the Constitution of India has historical background. It is intended to provide for equitable opportunities and facilities for the people belonging to different parts of the State. It aims at maintaining integrity of the State and to dispel any feelings of one region dominating the other region. While interpreting the Presidential Order, the philosophy behind Article 371-D of the Constitution of India cannot be lost sight of.
63. We shall now examine the other related contentions. By the impugned G.O. Ms. No.72, the Government in purported exercise of power under Rule 23-A read with Rule 33 of the General Rules, regularised the services of the petitioners only from the date of their initial appointment/promotion to the post of DEE. While doing so, the final seniority list, approved by the Government in G.O. Ms. No.314, dated 29-11-1994, G.O. Ms. No.38, dated 16-2-1996 and G.O. Ms. No. 147, dated 30-7-1996 (G.O. Ms. No.28 and 147 were only modifications to G.O. Ms. No.314), were superseded. The result of which is that the petitioners lost 100 to 200 places in their respective seniority positions. If the petitioners retain their dates of regularisation with reference to different panel years, as ordered by the Government in G.O. Ms. Nos.259 and 260, the petitioners would have retained their original positions. It is not denied before us that the Government has not issued any orders either withdrawing various orders giving relaxation to some of the petitioners or withdrawing G.O. Ms. Nos.259 and 260. It is needless to point out that no such orders could be issued without issuing notice to the petitioners, who have been the beneficiaries of retrospective dates of regularisation, and who enjoyed their seniority positions from 29-11-1994, when G.O. Ms. No.314 was issued. Indeed, some of them were also promoted temporarily as Executive Engineers based on such seniority. Any withdrawal of the benefit would certainly result in civil consequences, and law abhors such withdrawal without following the rule of audi alteram partem. This criticism is sought to be met by the learned Additional Advocate-General saying that memo dated 6-3-2000 was itself a notice to the petitioners that the dates of seniority list will be changed. We are afraid, we cannot, agree with the same.
64. Government memo dated 6-3-2000, which was impugned in the OAs before the Tribunal only says that seniority list issued in G.O. Ms. No.314 requires rectification in view of the directions, especially direction No. 18(4) issued by the High Court. Direction 18(4) nowhere refers to G.O. Ms. No.259 or 260. The memo does not refer to any intended dates of regularisalion, though it says that in respect of certain DEEs the dates of commencement of probation is not from the date of entry into service. The question, therefore is, can the petitioners be denied their dates of regularisation in respect of which there was no notice. In other words, can the dates of regularisation be changed based on a notice i.e., memo dated 6-3-2000, which gives other grounds, and it has not put the petitioners on notice on this aspect. Our answer to this question should be in the negative. In P.K. Roy's case (supra) a similar question was considered by a Constitution Bench of the Supreme Court, in the context of preparation of provisional gradation list by the State of Madhya Pradesh in relation to officers ofthe Engineering Department. While doing so, the State of Madhya Pradesh applied the principle of "kicking down" by inserting "assumed date" while preparing gradation list without notice. The same was challenged as violating natural justice. The submission was adverted to by the Supreme Court as under:
.......... It was argued by Mr. Asoke Sen that in regard to both these matters the respondents have a right of representation and the final gradation list should have been published after giving them a further opportunity to make a representation. Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case (see the decision of this Court in Shri Bhagwan v. Ram Chand, ). In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final graduation list was published. As no such opportunity was furnished to the respondents with regard to these two matters we hold that the combined final gradation list dated April 6, 1962 so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari....... .
65. While preparing the seniority list, zone-wise and year-wise i.e., from 1-4-1965 to 18-10-1975, from 19-10-1975 to 31-12-1982, and from 1-1-1983 to 31-12-1987, the Government followed Rule 33 of the General Rules, which lays down that seniority of an employee shall be determined from the date of appointment. The Government ignored various orders issued in favour of the petitioners and others under Rule 47 of the General Rules, which enables the Governor (Government) to relax the rules. In view of these relaxation orders, the seniority of the petitioners has to be reckoned from the notional date of appointment/regularisation in the post of DEE, as otherwise, for the purpose of relaxation there will be a date, which may in some cases be anterior to the date of appointment/promotion as DEE and for other purposes, say for seniority, there will be different date. In such cases, applying Rule 33(a), which was relaxed, is a grave error, which was not noticed by the Tribunal in the impugned judgment. Whether or not the regularisation is once for all final will be considered when we take up the next point for consideration. For the purpose of this discussion, suffice it to say that placing reliance on Rule 33(a) by misinterpreting the directions issued by the Tribunal in OA Nos.41796-97 of 1998, is arbitrary and ex-fade violative of Articles 14 and 16 of the Constitution of India. Be it noted that the Full Bench of the Tribunal vide direction (iii) and direction of the Division Bench of this Court vide direction 18(1), are clear that the Government's power to make retrospective regularisation under Rule 23 of the General Rules, and the seniority of the promotee Engineers cannot be reopened. The reason given in para 3 of the impugned order is contrary to the directions issued by the Full Bench of the Tribunal as well as the Division Bench of this Court, and cannot be sustained.
66. Before we deal with other submissions made by the learned Counsel, we may summarise our conclusions on point Nos.1 and 2 as under:
(i) As per various judgments of the Supreme Court, starting from Rama Rao's case (supra) till Radhakrishna Reddy's case (supra), it is permissible for the authorities to give retrospective dates of regularisation to promotee Engineers;
(ii) Having exercised power of review and readjustment as per para 13 of the Presidential Order, the Government has no power or jurisdiction to again resort to review and readjustment of the allotment of AEEs/DEEs in Zone V, VI and VII, especially when the two GOs.259 and 260 received judicial approval by the Tribunal as against which the SLP filed was also dismissed by the Supreme Court;
(iii) The Government Order being G.O. Ms. No.314, dated 29-11-1994 approving the final seniority list was issued immediately after the judgment of the Tribunal in OA No.2355 of 1993 and batch, dated 23-11-1994, in which validity of G.O. Ms. Nos.259 and 260 was sustained, and therefore, the Government cannot rely on the observations made in the concluding para of the judgment of the Tribunal in the said OA. This conclusion must be read in conjunction with conclusion (i) hereinabove.
(iv) The directions issued by the Tribunal in the Full Bench, which were in effect approved by the Division Bench of this Court in WP No.5834 of 1998 subject to certain modifications are fully in tune with various principles laid down by the Supreme Court starting from Rama Rao 's case (supra) till Radha Krishna Reddy's case (supra); though these directions were issued in relation to a dispute regarding inter se seniority of direct recruit DEEs and promotee DEEs, and by no stretch of imagination they can be said to have authorised the Government to change the dates of regularisation, and thereby alter seniority of the promotee Engineers. Directions issued by the Division Bench of this Court in WP No.5834 of 1993, especially direction 18(4) cannot be read as permitting the Government to change the dates of regularisation of the petitioners;
(v) The impugned order was issued in violation of the principles of natural justice, in that the memo dated 6-3-2000, which preceded the impugned GO does not either indicate the intention to withdraw G.O. Ms. No.259 and 260 and various other Government Orders relaxing Rule 33(a) or withdraw the dates of regularisation given to the petitioners; and
(vi) The learned Tribunal misdirected itself in coming to the conclusion that inspite of G.O. Ms. Nos.259 and 260 being sustained by the Tribunal, and the SLP therefrom being dismissed, it is still open to the Government to change the dates of regularisation of the petitioners, and misdirected itself in appreciating various directions issued by the Division Bench in WP No.5834 of 1998.
Point Nos.2 and 4 are answered accordingly.
In Re Point No. 3:
67. As already noticed, the submission in a sense is that it is only for the competent authority to fix the date of regularisation of a person appointed to a service, and when once the date of regutarisation is decided, there is no power vested in the competent authority to revise, alter or change the date of regularisation. We have extracted Rule 23 of the General Rules. The term "regularisation" is not defined in the rules. Indeed in Service Jurisprudence, the word "regularisation" is used to indicate the status of an incumbent "when an approved candidate" appointed to a service, completes the period of probation and awaits appointments as "full member of the service". The status of an employee either as temporary employee, probationer, approved probationer or full member of service, assumes significance when a cadre, class or category of a service is reduced/ disbanded or abolished. In such an eventuality, temporary employee, probationer, approved probationer and/or full member, in that order alone would be ousted from service. Indeed, if he is full member of the service, he is always considered as part of permanent cadre of a service or class of service, and it is only the full members who can generally claim legitimate expectation of appointment by transfer in another service or class or lower class of service.
68. When a person completes his period of probation satisfactorily as per the provisions of Rule 23 of the General Rules, he shall be deemed to have been regularised in the service from the day when he is appointed to a service though such employee might have completed period of probation at a later date. Further, Rule 23(a) enables the appointing authority to determine the date of commencement of probation either from the date of appointment or from such earlier date as the appointing authority may determine, in which event the person shall be deemed to have been regularised from such earlier and/or anterior date as decided by the appointing authority. When once a person is regularised in the service, that is to say, when the period of probation is satisfactorily completed, and deemed to have been completed from a date anterior to the date of appointment to a service, the date of commencement of probation which is either the actual date of appointment of service or such earlier date as is determined by the appointing authority can legitimately be the relevant date for the purpose of Rule 33(a) also which speaks of fixing of seniority. When once the appointing authority declares the date of regularisation, it is final and the same cannot ordinarily be altered or changed. Even when the seniority list is reviewed under Rule 36 of the General Rules, to which a reference has already been made, the date of regularisation cannot be changed or altered. But having regard to the rule position, where inter se seniority is fixed among direct recruits and promotees, the seniority position can be changed subject to maintaining inter se seniority placement in category, that is to say, either direct recruit category or promotee category. To say in other words, when a person belongs to promotee category, his date of regularisation, and his place in the seniority list remain unchanged.
69. The above view of ours is supported by a Division Bench judgment of this Court in Subramanyshwar Rao 's case (supra). In the said case, the writ petitioner was promoted as Talisildar on 1-5-1961, and his services were regularised by the District Collector, who is the competent authority with effect from 17-6-1957, the date of commencement of probation. In 1963, the Board of Revenue also prepared a gradation list showing him at serial number 40, and the date of regularisation as 17-5-1957. However, the Board sought to revise the date of regularisation, and accordingly issued notice to the petitioner, which was objected to by the petitioner in vain. The common gradation list was revised and the petitioner was regularised w.e.f. 4-10-1961 changing his date of reguiarisation, which resulted in revision of his seniority. A learned single Judge of this Court invalidated the Government action. In the appeal filed by the State, a Division Bench of this Court comprising Komaraiah and Konclaiah, JJ. (as their Lordships then were) considered the scope of power exercisablc under Rule 23 of the General Rules. After noticing all the relevant General Rules, it was observed:
.....There is no provision for an appeal against an order declaring the completion of probation. Also there is no appeal provided with regard to the fixation of the date of probation which may be determined under the last para of Rule 23(a). The dates of commencement of probation and also the completion of probation thus depend upon how the competent authority exercises its power. The appointing authority in the present case was admittedly the Collector who declared the probation.
There is also provision in the statutory rules with regard to seniority. Rule 33 says that the seniority of a person in a service, class, category of grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under Rules 10(a)(iv), 10(b), 16, 37(d) or 42(d), his seniority shall be determined by the date of commencement of her service which counts towards probation. It is also provided in Rule 33(b) that the appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rules reservation of appointments or for any other reason the order of preference among them, and where such order has been fixed seniority shall be determined in accordance with it.
Yet again, the Division Bench further ruled thus:
The result of the above discussion is that the Government was bound to accept the date of probation of the writ petitioner as approved by the Collector quite in accordance with the statutory rules long ago and even before the GOs, relied oncame into force with the result that a vested right had accrued to him on that basis. The decision of the Collector was final and the Government under no provision, express or necessarily implied, could interfere with it. That apart, the formula sought to be applied could not be resorted to as it went beyond the rules and was inconsistent with them. Further, even assuming that they could resort to that formula, it is clear even on their own showing the petitioner could not be given the date of commencement of his probation in the year 1961 but much earlier.
70. The decision squarely applies to the facts of this case. Accordingly, we hold on point No.3 that when once the petitioners dale of regularisation was fixed in accordance with G.O. Ms. Nos.259 and 260 as well as G.O. Ms. No.314, it is impermissible for the State to alter/change the date of regularisation, especially having regard to para 13 of the Presidential Order which has no overriding effect.
71. It is not denied by all the parties before us that G.O. Ms. No.314 was never challenged either before the Tribunal or before this Court. In fact G.O. Ms. No.3!4 was upheld by Full Bench of the Tribunal as well as a Division Bench of this Court, however so, giving liberty to the Government to verify G.O. Ms. No.314, and review any mistakes that might have crept in having regard to the principles laid down by the Division Bench of this Court. To what extent the Government could do so, is again governed by various judgments of the Supreme Court referred to hereinabove as well as the orders of the Tribunal. Point No.3 is answered accordingly in favour of the petitioners.
In Re Point No. 5:
72. Sri P. Balakrishna Murthy and Sri M. Ratna Reddy, also raised other contentions to point out the infirmities and irregularities in the impugned seniority list issued vide impugned order. They have taken us through to the lengthy zone-wise seniority lists of DEEs in respect of all zones in an attempt to demonstrate before us the following points:
(i) The direct recruits were given retrospective appointments which is contrary to the law laid down by the Supreme Court;
(ii) Rule of reservation in accordance with Rule 22 was not followed while promoting the candidates belonging to Scheduled Castes;
(iii) While filling up the posts of DEEs by direct recruitment and by promotion, the quota was not followed and the seniority positions were not fixed accordingly;
(iv) As per note 1 to Rule 4 of the Special Rules, the cycle of promotion to be followed for promotion to the post DEEs between AEs and AEEs was given a go by;
(v) Irregularities were committed while appointing post-graduate Engineers to the post of DEEs by the method of direct recruitment by mis-interpreting the rule position; and
(vi) Though G.O. Ms. No.314, by which the final seniority list was approved received the imprematur of the Hon'ble Supreme Court in P. Sreedhar v. State of A.P. in CC No.98 of 1995, dated 16-4-1996, the Government proceeded wrongly in issuing the impugned order.
73. It is not necessary to consider all these points in detail having regard to the order we are passing in these cases. However, we will deal with some of the aspects.
74. Whether the observations made by the Tribunal in OA No.2335 of 1993 and balch upholding the validity of G.O. Ms. Nos.259 and 260 as well as the directions issued by the Full Bench of the Tribunal in OA Nos.41376-97, and the Division Bench of this Court in 5834 to the effect that it is open to the Government to rectify the mistakes in G.O. Ms. No.314, enables the Government to revise and/or change the dates of regularisation and seniority of the petitioners? In our opinion, this is not permissible. When the Tribunal and this Court had observed that placing the petitioners in respective panel years having regard to para 13 of the Presidential Order would be subject to review at the time of preparation of seniority list. By that, they only meant the inter se seniority of promotees and inter se seniority of promotees as well as direct recruits of a particular panel year and not with reference to general seniority. Did the Tribunal and this Court intended to deprive the petitioners their respective dates of regularisation? Our answer is in the negative. Our view is supported by a judgment of the Supreme Court in Government of Andhra Pradesh v. A.K. Jaiswal, 2001 AIR SCW 101= (2001) 4 SCC 748.
75. In Jaiswal's case, the fact in brief are as follows: After of the State of Andhra Pradesh by integration of State of Andhra and State of Hyderabad, disputes arose as to the respective dates of regularisation and seniority. The APAT had earlier upheld the action of the Government in giving retrospective dates of regularisation to cadre officers. However, the question of fixing of seniority of Andhra Engineers vis-a-vis Telangana Engineers was left open. By another judgment, which was impugned before the Supreme Court in Jaiswal's case, the Tribunal took a different view as to the validity of such retrospective regularisation and found fault with such regularisation. The question before the Supreme Court was whether it was permissible for the Tribunal to ignore its earlier order validating the retrospective regularisation of cadre officers. The Supreme Court held that it is impermissible to do so. It is laid down as under:
.........We have already noticed that there is no room for coming to such conclusion and that the finding of the earlier Bench of the Tribunal was a conclusive finding and what was said to be provisional in the judgment was only the question of applying the effects of the said retrospective regularisation while considering the allotment of seniority in the gradation list to be prepared. In other words, with reference to such Telangana Engineers who had not acquired any right to hold any particular post prior to 1-11-1956, they will be placed below the Andhra Engineers who got an earlier date of entry into service because of the retrospective regularisation. Therefore, in our opinion, the subsequent Bench of the Tribunal could not have reopened the main question of retrospective regularisation by the impugned judgment.
76. In K.S. Reddy v. Principal Secretary to Government of A.P., 2001 AIR SCW 2508, the direct recruits to the post of DEEs in the Department of Irrigation again assailed the principles applied for determining inter se seniority between them and promotees. Before the Supreme Court, it was contended that in Prasad, Radhakrishna Reddy, Hanmanth Rao and Chandrashekar Reddy cases (supra), the Supreme Court only protected the faction of promotion in respect of promotees prior to 31-12-1982, but not their seniority, and when promotion was not disturbed by compassion, such a promotee cannot get seniority also on that score. The Supreme Court repelled this contention and held:
.....the original decision had been rendered by UN. Mishra (as His Lordship then was) and the very learned Judge in the subsequent decision had also interpreted as to what has been held in the first decision and has categorically said that promotees prior to 31-10-1982 even beyond the quota meant for them will be allowed to continue in the promotional post and also their seniority infer se will not be disturbed in any manner. It must be stated insofar as all the persons is concerned, it is not governed by Recruitment Rules, but by the A.P. State Subordinate Service Rules.......... Having examined all the decisions placed before us, we do not find that in any decision a view has been taken that only the Court has protected the promotion and not their seniority, and possibly that is the reason why ' recently a Bench of this Court in the case of J. Chandrashekar Reddy (supra) did not interfere with on being approached by direct recruits of R&B Department.
77. In WP No.5834 of 1998, the Government filed detailed counter. In paras 15 and 16 of the said counter, affirmed by the Secretary to Government in the R&B Department, it was averred that G.O. Ms. No.314, 38 and 147, reflect the clarification issued by the Supreme Court in its judgment dated 7-10-1993, as observed in judgment dated 16-4-1996 in the contempt case filed by one Sreedhar, that G.O. Ms. No.314, 38 and 147 are in accordance with the orders of the Hon'ble Supreme Court as well as various orders issued by the Tribunal. It is not shown before us by the learned Advocate-General or other Counsel appearing on behalf of respondents or proposed respondents as to how the statement made on oath was incorrect or contrary to the judgment of the Hon'ble Supreme Court in its various judgments.
78. Further, as noticed above, while issuing certain directions the Full Bench of the Tribunal had ordered that the promotee DEEs who are promoted prior to 31-12-1982, and who were appointed in excess of their quota would not count their service for the purpose of their seniority. This direction, as found by the Division Bench, was ex-fade contrary to the directions issued by the Supreme Court, and therefore, the Division Bench specifically set aside the same. There could be some mistakes in G.O. Ms. No.314, either not including DEEs or by not giving proper place in the inter se seniority considering the service of the promotee DEEs appointed prior to 31-12-1982. This was taken care of by direction 18(4). The direction, therefore, has to be understood in the light of the background of the case and cannot be taken to have given rise occasion to the Government to reopen the entire seniority list which was approved in G.O. Ms. No.314. It is well settled that the seniority list cannot be reopened when once the same has become final. This view of ours is also supported by a Division Bench judgment of this Court in Kotam Raju 's case (supra) in which one of us, S.B. Sinha, CJ., was a member.
79. As pointed out by the learned Counsel, direct recruits were given retrospective appointment. A reference to the seniority list shows that prima facie, the learned Counsel is correct. It is well settled that such a course is impermissible. In Suraj Prakash Gupta v. State of Jammu and Kashmir, , the Supreme Court considered the question whether direct recruits could claim retrospective date of recruitment from the date on which the post in direct recruitment quota was available even though the direct recruit was not appointed by that date and was appointed long thereafter. The question was answered as under:
This contention in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority over from a date when he was not born in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat , Krishna Iyer, J,., stated:
Later direct recruits cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.
Again, in A. Janardhana v. Union of India , it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly, it was pointed out in A.N. Pathak v. Secretary to Government, (1987 Supp. SCC 763 = 1988 SCC (L&S) 370, that slots cannot be kept reserved for direct recruits for retrospective appointments.
80. Another aspect of the matter is the question of giving preference to postgraduate in appointment of DEEs. As per Note 1 to Rule 4 of the A.P. Engineering Service Rules, 1967, post-graduate qualifications of an Indian or a Foreign University shall be treated as additional qualification, and "preference shall be given to such candidates in the matter of direct recruitment, promotion and recruitment by transfer to the post of DEE. By G.O. Ms. No.180, dated 29-4-1983, an amendment was issued to the effect that in a cycle of nine vacancies, intended for appointment of AEEs, the ninth vacancy shall be earmarked for post-graduate AEEs. The submission made before us is that this rule was improperly applied. Likewise, it is also contended that while working out the cycle of promotion for DEEs under note 1 to Rule 3, which provides the cycle/roster to fill up the posts of DEEs has been violated. This submission, in fact, is not denied by the learned Additional Advocate-General. However, we do not wish to record any finding on these issues having regard to direction 18(7) issued by the Division Bench of this Court giving liberty to the Government to scrutinise G.O. Ms. Nos.314, 38 and 147. The same, however, will have to be done in the light of the observations made hereinbefore, if necessary. Point No.5 is answered accordingly.
81. In the result, we allow the writ petitions and set aside the impugned judgment dated 19-4-2000 passed in OA No.1357 of 2000 and batch. Consequently G.O. Ms. No.72, Transport, Roads and Buildings Ser.II Department, dated 6-5-2000 insofar as the same seeks to alter the date of regularisation of the petitioners and change their seniority positions in G.O. Ms. No.314 dated 29-11-1994 and other Government Orders is set aside. There shall, however, be liberty to the Government to review the final seniority list in respect of other DEEs, approved in G.O. Ms. No.314 dated 29-11-1994 if the same is found to be contrary to the relevant rules subject, however, to the findings and observations recorded hereinabove. All miscellaneous applications for impleading stand dismissed. There shall be no order as to costs.